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Yasin v Ali [2009] FJMC 4; Civil Action 419.2005 (28 August 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Civil Action No. 419 of 2005

BETWEEN:

MOHAMMED YASIN
PLAINTIFF

AND:

AFROZ ALI
DEFENDANT

Counsel for Plaintiff: Ms R Karan, Diven Prasad Lawyers
Defendant: No Appearance

Date of Hearing: 10 August 2009
Date of Ruling: 28 August 2009

RULING

[1] This is the Applicant’s Notice of Motion dated 29th October 2008 seeking reinstatement of the Plaintiffs action, which was struck out on 24 October, 2008.

[2] The Notice of Motion and Affidavit in Support have not been served on the Defendant. On first call of the said Motion on 17th November, 2008 it was adjourned for service on the Defendant. It was adjourned further on several other occasions for service on the Defendant.

[3] On 20 July 2009, Mr Maharaj attended before this Court because the Court Registry had served a Notice of Adjourned Hearing on his office. He informed the Court that he had no further instructions from the Defendant and could not appear. Counsel for the Plaintiff informed the Court that they were unable to locate the Defendant and would enquire with the Immigration Department.

[4] On 10 August 2009 this matter was called again. Counsel for the Plaintiff made an oral application for substituted service of the Notice of Motion and Affidavit in Support by advertisement.

[5] The Court declined to make order for substituted service of the Notice of Motion and Affidavit in Support or to adjourn the matter further.

[6] The Court considered the merits of the application for reinstatement, and based on the Court’s review of the Affidavit in Support and the Court file, including the Judge’s Notes, it dismissed the Plaintiffs application, giving its reasons for doing so, which are set out herein in greater detail.

Reasons for Refusing Reinstatement

[7] If the Plaintiffs claim had been struck out only because his solicitor was ill on the day of the hearing, the Plaintiffs application for reinstatement would have been granted. But that is simply not the case.

[8] The Plaintiffs Affidavit in Support refers to one of the Plaintiffs solicitors being sick and requesting adjournment while the other was unavailable as he was attending a funeral.

[9] It further states that the Plaintiff was ready to proceed for hearing.

[10] However, the Judge’s Notes for 24th October 2008, the date of hearing, clearly reflect that counsel for the Defendant informed the Court on that day that the Plaintiffs counsel had told him that the Plaintiff "is in overseas and will not be back till March 2009".

[11] The Judge’s Notes also reflect that the matter had been set for hearing on 16th October, 2008, but on that date the Plaintiffs solicitors informed the Court that the Plaintiff was overseas. The Learned Magistrate informed the Plaintiffs counsel that he wanted a proper closure to the case, and that the Plaintiff should be ready to take his case to trial. The Learned Magistrate adjourned the hearing on that date and gave a new hearing date of 24th October, 2008.

[12] From that this Court infers that the Plaintiff had been warned by the Learned Magistrate to be ready for trial and given time to travel to Fiji for the next hearing date.

[13] This Court also notes that the Plaintiffs solicitors had not had the courtesy to inform the Court of the Plaintiffs unavailability and their request for adjournment prior to the hearing date of 16th October 2008.

[14] Counsel appearing for the Plaintiff on 24 October 2008 informed the Court that the solicitor who had conduct of the matter was sick, but could not provide the Court with a sick sheet when asked. She was not aware if the Plaintiff was overseas.

[15] Defendant’s counsel then informed the Court that the Defendant had instructed him to withdraw the Defendant’s counter-claim if the Plaintiff withdrew his claim, but otherwise the case should be struck out. The Defendant’s solicitors made submissions to the Court that his firm had attended to the action 18 times since 2005. They had tried settlement 4 times. He asked for the matter to come to an end that day, and submitted that the Plaintiff didn’t have any good reasons for adjourning, and that he wasn’t concerned about costs.

[16] In deciding to strike the matter out, the Learned Magistrate reviewed the Court’s file and noted that the Writ was filed in December, 2005, some three years earlier. He noted that it had been fixed for hearing 6 times. He stated that the Plaintiff was overseas and should be there to testify to his claim, but he was not.

[17] The Learned Magistrate stated that there must be a fair and proper close to the case, and he ordered the matter struck out. He gave 28 days for the Plaintiff to appeal.

[18] This Court is of the opinion that the reason the Plaintiffs action was struck out on 24th October 2008 was that the Plaintiff did not attend the hearing, he was in overseas, he had been given hearing dates previously which did not proceed, and the Defendant withdrew his counter-claim to enable striking out.

[19] That the solicitor who had conduct of the matter was sick on the date of hearing is irrelevant. She would not have been in a position to proceed with the hearing in any event, as her client did not appear at the hearing and was not available to attend, being overseas til March, 2009.

[20] That the Plaintiff went overseas and planned to stay overseas until March, 2009 when his matter was set for hearing in October, 2008 shows that the Plaintiff had no intention of proceeding to hearing at that time.

[21] Therefore the Court was entitled to strike the matter out and award costs to the Defendant under Order XXX r 2 of the Magistrates Courts Rules, as no good reason had been given for the Plaintiffs absence at the hearing. The Learned Magistrate could have done so on 16th October, 2008, but he chose to give the Plaintiff another chance to settle or proceed to trial. The Plaintiff did not do either.

[22] It should be noted that the Defendant could have proceeded with the hearing of his counter-claim in the absence of the Plaintiff, under Order XXX r 4 of the Magistrates Courts Rules. The Defendant chose to withdraw his counter-claim instead to end the matter.

[23] Even though the Plaintiffs application was filed quite promptly after the striking out, the Plaintiffs solicitors have been unable to locate the Defendant to serve him. The solicitors who represented the Defendant at the hearing have no further instructions since the striking out.

[24] To reinstate the Plaintiffs claim now, when the Defendant has withdrawn his Counter-Claim and foregone costs in order to have it struck out, would be prejudicial to the Defendant.

[25] Further, the Plaintiff has not demonstrated to this Court that he is ready to proceed with this action. The Affidavit in Support is sworn by a law clerk, not the Plaintiff. The Plaintiffs whereabouts are not deposed to in that Affidavit. The Affidavit falsely claims the Plaintiff was ready for hearing when he clearly wasn’t.

[26] Order XXX r 6 of the Magistrates Courts Rules provides that any civil cause struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the court may seem fit.

[27] The word "may" is discretionary. Therefore it is in the Court’s discretion as to whether the Plaintiffs claim should be reinstated.

[28] This Plaintiff has had 6 hearing dates given to him and he has not proceeded to hearing on any of them. He has been given ample opportunity for trial of his matter but the Plaintiff has shown no real interest in prosecuting his claim.

[29] There is no evidence before this Court that the Plaintiff was unable to attend the hearing on 24th October, 2008, only that the Plaintiff chose not to attend as he was overseas. If the Plaintiff had been serious about pursuing his claim he would have attended on that date. He was given that date after having failed to appear on 16th October 2008 and he still didn’t attend.

[30] A plaintiff who takes a hearing date from this Court is obligated to appear on that date and proceed with his action, barring unforeseen or uncontrollable circumstances. That a plaintiff is "in overseas" is something that the plaintiff can and does control.

[31] This Plaintiff made a choice to go overseas and stay there rather than attending Court on the hearing date of 16th October, 2008. He chose to stay overseas even when given a further hearing date of 24th October, 2008. The result was that his action was struck out. The Plaintiff must accept responsibility for his own choices.

[32] The Learned Magistrate said on 24th October 2008 that there must be a fair and proper close to this case. This Court agrees.

[33] Plaintiffs should not expect this Court to grant them one adjournment after another simply on the basis that they are overseas. It is not justice to the Defendant for this Court to continually defer hearing of a matter to accommodate a plaintiff who is not willing to return to Fiji from overseas to prosecute his claim.

[34] The Plaintiffs application for reinstatement is denied and dismissed, with no order as to costs.

DATED this 28th day of August, 2009

Mary L Muir
RESIDENT MAGISTRATE
SUVA